This presentation by the OECD Secretariat, was made during the discussion “Licensing of IP rights and competition law” held at the 131st meeting of the OECD Competition Committee on 6 June 2019. More papers and presentations on the topic can be found out at oe.cd/lipr.

1. IP Licensing
and
Competition
DAF / Competition Division, OECD
Paris, 6 June 2019

2. • Going Digital Project (https://www.oecd.org/going-digital/project/)
• OECD project to review and update its Recommendations
• Competition and Intellectual Property Rights as a long-term theme for
2019-2020 (DAF/COMP/WD(2018)4
– Approved by this Committee in June 2018
Context - OECD
2

3. Context
3
• Increase in type, scope and number of IP Rights
– More inventions and creations have become eligible for protection
– Copyright protection has been lengthened
– International agreements impose additional obligations
• E.g. TRIPS, the WIPO Copyright Treaty and the WIPO Performances and Phonogram Treaty
Patent Grants

4. Context
4
IP Rights increasingly important for economic performance
• Share of US GDP attributable to IP-intensive industries increased from
34.8% in 2010 to 38.2% in 2014 (USD 6 trillion).
– Such industries support at least 45 million U.S. jobs
• Merchandise exports of IP-intensive industries made up 52% of total US
merchandise exports
Source: US Patent and Trademark Office
`
• Most of this does not come from patents, but trademark and copyright
– In UK in 201, investment was:
• 47% in copyright
• 22% in trademark
• 18% in unregistered design rights
• 10% in patents (i.e. one-fifth of investment in copyright)

5. OECD
• Enquiries Into Intellectual Property's Economic Impact, 2015
• Competition Policy and Knowledge-Based Capital, 2013
Competition Committee
• Competition, Intellectual Property and Standard Setting, 2014
• The Digital Economy, 2012
• Standard Setting, 2010
• Competition, Patents and Innovation, 2009
• Competition, Patents and Innovation, 2006
• Intellectual Property Rights, 2004
• Competition Policy and Intellectual Property Rights, 1997
Prior OECD Work on IP
5

6. Recommendation of the Council concerning Action against Restrictive
Business Practices relating to the Use of Trademarks and
Trademark Licences C(78)40/FINAL (1978)
(i) Eliminates restrictions on the importation of a product legitimately
marked abroad with the same trademark;
(ii) Prohibits per se a number of restrictive practices involving the use of
trademarks in national or international trade, including:
– Trademark-related restraints of sales or resales by licensees
– Tying arrangements
– Price maintenance agreements involving licensees or distributors
OECD IP Recommendations
6

7. Recommendation of the Council concerning the Application of
Competition Laws and Policy to Patent and Know-How Licensing
Agreements C(89)32/FINAL
(i) Adopts effects-based approach to licensing practices
(ii) Limited to Licensing and Know-How
(iii) Hard to access (20 pages of conclusions of 150 page report)
(iv) Out-of-date (e.g. does not address patent pools, standard setting,
dynamic innovation concerns, etc.)
OECD IP Recommendations
7

8. – Recommendations do not address some of most important IP rights (e.g. copyright)
– Earlier recommendation reflects competition philosophy which we no longer share (form-
based prohibitions)
– Recommendation that adopts modern effects-based approach is silent on more recent
areas of controversy
• Standards
• Patent Pools
• IP and innovation
• Merger control
• Licensing as remedies
• Etc.
Issues
8